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Mar 1, 2017

For the Indian-born, Entrepreneurship is the Fastest way to a Green Card

Matthew Galati

Every month, hundreds of Indian families await the issuance of the Visa Bulletin. Employment-based immigrants to the U.S. are subject to annual quotas that limit the number of Green Cards to be awarded each fiscal year by preference category. Our immigration system further limits the amount of visas that can be awarded to any one country of chargeability (defined by place of birth, not citizenship) to no more than 7 percent of all visas issued. This limitation affects populous countries with large amounts of immigration into the U.S. the hardest, resulting in long backlogs in certain categories. The U.S. awards Green Cards on a “first come, first served” basis based on date of filing. This creates a major problem for some Indian immigrants, but there can be faster ways forward through entrepreneurship.

By way of background, here are the March 2017 Visa Bulletin final action dates, essentially determining who is at the “front of the line” for a Green Card:

 

Employment- based Category

All Chargeability
Areas Except
China, India, Mexico, Philippines and E.G.H.

 

India

1st

C

C

2nd

C

01JUN08

3rd

01DEC16

22MAR05

Other Workers

01DEC16

22MAR05

4th

C

C

Certain Religious Workers

C

C

5th Non-Regional Center (C5 and T5)

C

C

5th Regional Center (I5 and R5)

C

C

 

Indian natives face the worst quota backlogs of any nationality in these categories. As frequent watchers of the Visa Bulletin know, the dates above do not move forward linearly. The wait times for India EB-2 and India EB-3 are probably much longer than they appear to be. Four years ago, fellow AILA attorneys Michael P. Nowlan and Christopher A. Teras wrote an insightful article entitled “How to Navigate the Visa Bulletin’s Murky Waters” (paywalled online; here is the relevant TOC) which attempted to estimate the actual wait times for India EB-2 and EB-3 visas based on the number of petitions awaiting to be adjudicated and visas to be awarded in the current queue. In other words, the duo attempted to answer the incredibly difficult question we are often asked, “how long will it take to get our Green Cards if we file today?” based on March 2013 data.

Their results were sobering. EB-2 was projected to take 6-7 years. If you think that is unreasonable, know that EB-3 was projected to take 71 years! There are many limitations in their modelling, which the authors acknowledge. For example, many EB-3 applicants will “upgrade” to EB-2 and thus demand between the categories will shift. Further, EB-3 is subject to heavy attrition given that virtually no one who qualifies for the category is willing to wait such an incredibly long time to immigrate – plans change and, frankly, human life expectancies just aren’t long enough. The authors did an excellent job of attempting to answer an impossible question and illuminated through data something we all anecdotally knew: EB-2 and EB-3 India is incredibly long, often prohibitively so.  

So what’s an Indian family to do? The answer lies in turning to entrepreneurship. There are two entrepreneur-oriented visas available that have a much more reasonable wait time.

EB-5 Immigrant Investor Visa: The EB-5 visa may be the easiest for an Indian family to “control their own destiny.” There is no quota backlog whatsoever for Indian natives, and there will most likely not be one for the foreseeable future. With as a minimum $500,000 personal investment in a U.S. business, investors may secure a Green Card for themselves and their unmarried children under 21. The investment may be active or (essentially) passive. There are no requirements for work or management experience, thus making this category an ideal route for an F-1 student facing the difficult odds of obtaining an H-1B. Based on the adjudication times for the immigrant petition and subsequent adjustment of status / consular processing, an Indian native will obtain a Green Card in approximately two years. For more information about EB-5, please visit our comprehensive discussion here.

EB-1-C Multinational Executive or Manager Visa: This category awards Green Cards to individuals who have been employed abroad by a qualifying entity (i.e. related ownership) and who are transferred to a U.S. entity in a managerial or executive capacity on a permanent basis. While it does require a U.S.-based employer (one cannot petition for himself), it is a method frequently utilized by entrepreneurs around the world. If qualifying overseas operations exist, one can even start a U.S. business and enter the U.S. in approximately a month in the analogous L-1A status.  This visa is incredibly helpful for individuals seeking to actively manage bona fide businesses in the U.S. Last year, this category briefly backlogged for Indian natives but was restored to “current” status in October. It is possible that it will again, however, any such backlogs will not be nearly as severe as India EB-2 or EB-3. Although more limited in its applicability than EB-5, the EB-1-C does not require a personal investment and the L-1A provides a means to remain in the U.S. while the Green Card process is pending (taking approximately one year after filing). For more information regarding the EB-1-C and L-1A visas, please visit our dedicated web page.

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